Alito Day 3 liveblogging

11.11 Specter acknowledges that he is speaking both to Alito and to the Court. He wonders whether Congress needs to have amici status to argue its case before the Court.

11.10 Alito says that Beorne was an attempt to give Congress some prophylactic power while retaining the remedial nature of the power under section 5 of the 14th Amendment. But he accepts that the Court’s jurisprudence hasn’t been predictable. He cites Hibbs as a case that was surprising to some commentators.

11.08 Specter asks what is wrong with the approach in Maryland v. Works and Gonzales v. Raich? Where does the standard in City of Beorne come from?

11.06 Alito notes Scalia’s test in his dissent in (I think) Hibbs: Congress has no proplyactic power outside of the race context.

11.05 Alito acknowledges that the standard doesn’t provide mathematical certainty. Specter doesn’t think it provides fair notice.

11.04 Specter doesn’t like the congruence and proportionality test set down by City of Beorne. He notes the volumous record complied by Congress in some cases.

11.03 Specter wonders whether anything Alito has observed over the last two days has altered this. Alito says no. Hatch is concerned about this.

11.01 Alito says that the branches are equal, and would never suggest that Courts have superior reasoning powers to Congress.

10.59 Specter is up. He wants to know whether it is appropriate for the Court to act as a “taskmaster” of Congression findings of facts.

10.58 Coburn yields the remainder of his time.

10.58 Alito says that when he has cases about immigrants, he can’t help but think of his ancestors; when he has cases about children, he thinks about his own; when he has cases about discrimination, he thinks of his own family and people he has known who have suffered discrimination.

10.56 Coburn thinks the criticism of Alito as not wanting to protect the little guy is unfair. He asks Alito to show him a little of Alito’s heart. Alito says he tried to give a flavor of this in his opening statement.

10.54 Alito has turned the question into a discussion of judicial restraint. He thinks this is very important.

10.53 Coburn asks Alito why he wants to be on the Supreme Court. Alito says it is a chance to make a contribution, using the skills he has developed as a judge. This is what he does best.

10.51 Coburn uses Alito to confirm that Ginsburg was, in fact, confirmed to the Supreme Court.

10.50 Coburn moves on from New Zealand, and asks about Supreme Court nominations and the relevance of the philosophy of the justice being replaced. Alito says that the Constitution doesn’t say anything about it, that each judge is an individual.

10.48 Coburn moves on to the Courts requirement for a health exception to abortion regulation. Coburn says he agrees with this. But he says that the Court has defined health too widely. He places a New Zealand study about the mental effect of abortion on women into the record. This is perhaps the first time New Zealand has ever been mentioned in a Supreme Court confirmation hearing. (Your blogger is from NZ.)

10. 44 Coburn is disappointed that Durbin has left, because he wanted to raz him. Durbin changed his mind on the abortion question. It should be plausible that Alito has.

10.43 Coburn says that reference to foreign law undermines democracy and a violation of the Constitution. He thinks its use violates the “good behaviour” qualification for judges.

10.41 Alito doesn’t think foreign law is relevant either. The framers would be “stunned” to know that the Bill of Rights was to be interpreted by counting what the rest of the world does. The Bill of Rights was meant at the time to give Americans more rights than the rest of the world. There are also a host of practical problems with the use of foreign precedent.

10.40 Coburn doesn’t like judicial reference to foreign law, and doesn’t think the majority of American like it.

10.39 Alito says that the founders, in granting the judicial power, probably expected the judiciary to apply fundamental principles of judicial reasoning.

10.39 Coburn how many times the Court has reversed itself. Alito doesn’t know, but Coburn does: it is around 170. Coburn says that the founders didn’t mention stare decisis.

10.38 Coburn asks whether stare decisis is mentioned in the Constitution. Alito says it is not.

10.37 Coburn is next. He puts a list of cases in which Alito has ruled for the “little guy” into the record, along with a statement about CAP saying that ROTC was one of the main reasons CAP was formed.

10.36 Brownback moves on to Kelo. He quotes from O’Connor’s dissent, and hopes that the Court will revisit it.

10.35 Alito says that the Full Faith and Credit Clause is important, but has exceptions. Scholars have expressed different views on whether the exception applies in such cases.

10.34 Brownback says that Congress is going to look at these methods more as Court gets involved in areas like same-sex marriage. He asks about the application of the Full Faith and Credit Clause in the marriage context.

10.33 Alito says there are different schools of thought on the scope of Congressional authority to restrict jurisdiction under the Exceptions Clause.

10.31 Brownback asks what the checks and balances on the Courts are? Roberts said that the only check is judicial restraint. Brownback wants to know about jurisdiction stripping under the Exceptions Clause.

10.29 Brownback asks about his dissent in a case concerning a school refusing to allow a pupil who wanted to read a Biblical story to the class, and refused to put up a picture of Jesus as a thing “he was thankful for”. Alito says that public speech is different from private speech. You can’t discriminate between types of private speech.

10.27 Brownback hopes we can have a open public square, not a naked one.

10.26 Alito says that this was the position taken by New Jersey city: they had displays for many festivals in the community. He says that applying the Supreme Court precedent, he found that it was constitutional.

10.25 Alito says that the Supreme Court has considered these issues in a number of cases. Brownback asks whether Alito favors a robust public square.

10.23 Brownback notes Alito’s ruling in an ACLU challenge to a New Jersey christmas display. Are these types of display generally constitutionally permissible?

10.21 Brownback moves on to religious liberty.

10.21 Brownback asks Alito how he interprets the Constitution. Alito says that Consitution has a meaning independent of what the Judge thinks it should include. Interpretation of constitution should proceed in the same way as interpretation of statutes: text and original understanding. But the Constitution is different in some respects: it is meant to endure over time, is difficult to amend, and on number of issues the framers did not purport to adopt a detailed code.

10.18 Brownback is channelling Mark Anthony. Dershowitz criticises Roe, and yet my colleages say that Roe is “settled law. He hopes that Roe will be revisited. There is no question.

10.15 Brownback now moves to the point … Roe. Says he doubts whether it’s settled law. He quotes Tribe, Ginsburg, Edward Lazarus, and Ely as criticising the reasoning in Roe.

10.15 Brownback says that Korematsu is also wrong.

10.14 Alito agrees that Holmes opinion in Buck v. Bell is repugnant to American traditions.

10.14 Brownback says its good for the Court to revist precedent, as it has done so over 200 times. Lists some cases he thinks are wrong: Buck v. Bell. Some cases should be revisited because they are repugnant to the Constitution.

10.11 Brownback asks whether all this super-duper precedent should have lead to Brown upholding Plessy. Alito says it was a factor that should have been considered. But Brown was right, and notes that Sweatt undermined Plessy.

10.10 Brownback has his own Specter-chart, listing the number of cases prior to Brown upholding Plessy.

10.10 Brownback asks whether Plessy was wrong. Alito says yes.

10.09 Brownback has another letter from a former colleague, also a Democrat and life-long feminist, who gives an unqualified endorsement. This goes into the record.

10.07 Brownback enters a letter from a former Alito clerk, a democrat, into the record.

10.06 Brownback starts his questions.

10.05 Specter allows Alito to respond. He mentions Shaw as an example of finding for the small person.

10.04 Durbin says that the two other judges, both Reagan appointees, came down on the side of the minors. Says their interpretation was obvious. Says that he is concerned that the small person will be subject to the crushing hand of fate when they come before Alito.

10.03 Durbin mentions another case concerning safety of mine workers. He says that Alito’s dissents demonstrate a preference of establishment institutions. Alito says that the case didn’t involve a mine as understood by ordinary people, but a pile of coal. The case involved a technical question of law. His finding probably didn’t spare the facility from some safety regulation.

10.01 Alito says that he was simply applying review standards to lower court’s grant of summary judgment. Durbin says that this doesn’t answer his question, which was about Alito’s criticism of the lawyer’s brief on appeal.

9.59 Durbin moves on. Questions Alito’s reliance on the failings of Kenneth Paroles’ (?) lawyer as a reason for granting summary judgment against his sexual harrasment lawsuit.

9.57 Alito says he struggled over that case. His point was that statistics can be misleading as a means of demonstrating trends. He notes that at least seven Pennslyvania judges had held that there had been no racial discrimination in use of pre-emptories. He thought that he couldn’t overturn this on the narrow federal standard.

9.55 Durbin asks about Alito’s rejection of statistic evidence in jury composition cases. Durbin is troubled by Alito’s “inappropriate” analogy between racial composition of juries and the handedness of past Presidents.

9.53 Durbin moves onto Springsteen. Durbin can understand Alito’s commitment to Springsteen. He wants to know about the “crushing hand of fate” that Springsteen writes about in Alito’s decisions.

9.52 Alito can’t remember anything about CAP. Durbin asks what admission of women and minorities has to do with treatment of ROTC. Alito says nothing, but his best explanation joining was a reaction to treatment of ROTC.

9.50 Durbin will touch CAP. Princeton’s ejection of ROTC is not an answer to the inclusion of CAP in Alito’s application letter. Durbin quotes from Diane Weeks (?). Alito says that his hiring of Diane Weeks illustrates his commitment to equality of women.

9.48 Durbin won’t touch the Federalist Society because everytime he does, he gets accused of McCarthyism.

9.46 Abortion is a painful issue for the country, says Durbin. Alito’s failure to repudiate his 1985 statements will leave many people unsure about his position.

9.45 Durbin asks again whether Roe is “settled law”. Alito says that it is a precedent entitled to respect under stare decisis, but if “settled” means it can’t be reconsidered that is another thing.

9.44 Durbin says that Roberts accepted Roe as the settled law of the land. Does Alito? Alito says that its an important precedent.

9.43 Durbin is troubled by this answer. Says that Alito has conceded that certain rights are settled, but left Roe in play. Says that Alito failed to agree with the quotes in Casey put to him by Speecter.

9.42 Alito says that he would now start a consideration of a right to choose with stare decisis.

9.41 Alito says that Griswold is based on the Due Process Clause, whatever Douglas might have said at the time. He distinguishes his comments on Griswold from Roe on the basis that Griswold is not likely to come before the Courts.

9.40 Alito says that Brown is based on text – the equal protection clause. Brown simply recognised that seperate education is a denial of equality, and this is based squarely on the text and principle of the EPC

9.39 Durbin says that Alito’s 1985 memo is not evidence of an open mind, and that Alito has been unwilling to distance himself from those comments, while distancing himself from his earlier comments on one person one vote. He is troubled by Alito’s failure to be unequivocal.

9.37 Durbin says that both Brown and Griswold aren’t strictly based in the text of the Constitution. Says he doesn’t understand Alito saying that there is a constitutional right in Brown and Griswold, but not in Roe.

9.36 Alito agrees with Brown v. Board; calls it one of the greatest, if not the greatest thing the Court has ever done.

9. 35 Durbin starts his questioning. Griswold is a starting point for him in nominations; he couldn’t support a nominee that didn’t recognise Griswold.

9.34 Specter welcomes back Judge Alito, and hopes that questioning will be finished today. Leahy says that some of the Senators have been troubled by Alito’s answers, and some inconsistencies that he has seen in them, so we should expect more questioning. Specter says we’ll wait and see, but every oppurtunity will be given to ask questions. Leahy praises Specter’s fairness.

9.27 The hearings are about to get underway.